Pac. Emp. Ins. Co. v. Hartford Etc. Ins. Co.

California Court of Appeal Aug 2, 1956 No. 5164Published

Before: Burch

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Holding. An employer's insurance carrier is not barred from bringing a separate action under Labor Code section 3852 to recover medical, hospital, and burial expenses paid on behalf of a deceased employee, even if the carrier previously asserted a lien only for death benefits in a separate wrongful death action brought by the employee's heirs.

Issues

Whether an insurance carrier is estopped from pursuing a separate action for medical and burial expenses after failing to include them in a lien against a prior wrongful death judgment.
Whether the carrier's failure to join the heirs' wrongful death action constitutes an impermissible splitting of a cause of action.

Disposition. affirmed

Quotations verified verbatim against the opinion

“plaintiff has neither split a cause of action nor waived its right under section 3852, Labor Code, nor become estopped to pursue this action by procuring partial recoupment elsewhere.”

“The wrongful death action is not based upon the injury to Conley, but upon his death.”

“Of importance to the wrongdoer is that he not be subjected to double liability for the same wrong by reason of the several causes of action which may arise under the act and the general law.”

143 Cal.App.2d 646 (1956) 299 P.2d 928 PACIFIC EMPLOYERS INSURANCE COMPANY (a Corporation), Respondent,

HARTFORD STEAM BOILER INSPECTION AND INSURANCE COMPANY (a Corporation), Appellant.

Docket No. 5164. Court of Appeals of California, Fourth District.

August 2, 1956. [647] McInnis, Hamilton & Fitzgerald for Appellant.

Oakes & Horton for Respondent.

BURCH, J. pro tem.[*]

Plaintiff, Pacific Employers Insurance Company, a corporation, is the insurance carrier for Quality Industries, Inc., whose employee came to his death by reason of the explosion of a boiler in the employer's laundry business. It has been established that the negligence of the defendant, Hartford Steam Boiler Inspection and Insurance Company, a corporation, was the proximate cause of the injuries and resulting death of the employee.

The widow and minor children of the deceased employee obtained a judgment of $18,500 against the defendant in a wrongful death action instituted by them under section 377 of the Code of Civil Procedure. The damages sought and recovered in that action were for loss of consortium and support. The plaintiff actively assisted the heirs in that action and was fully informed of the proceedings had therein. The plaintiff had disbursed to the plaintiffs therein the sum of $3,220 by way of death benefits, and the court made an order allocating out of the judgment to the plaintiff the said amount. The court found at the same time that the plaintiff had paid, in addition, hospital and medical bills in the sum of $3,874.42 and reasonable burial expenses in the amount of $400 "which latter two sums these plaintiffs will not reimburse to said Workmen's Compensation carrier." The present action was thereupon instituted to recover those two sums. The trial judge, who also presided in the other action, rendered judgment for plaintiff. A finding was made with reference to the death action that: "Plaintiff claimed its lien against the judgment therein to the extent of $3220 which sum plaintiff had paid as death benefits to the said heirs who were plaintiffs in said action" and plaintiffs accepted same with "full and complete knowledge" of the fact that the action had been filed, tried and adjudicated but filed no lien for the medical-hospital bills and the burial expense. Judgment went for plaintiff, and defendant urges that the above facts are fatal to recovery because plaintiff has made its election to pursue

Pac. Emp. Ins. Co. v. Hartford Etc. Ins. Co.

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